Brexit Institute News

Extending Provisional Application of the TCA – A Matter of Democracy

Merijn Chamon (Maastricht University)

On 23 February the EU and UK informally agreed to extend the period of provisional application of the EU–UK Trade and Cooperation Agreement until 30 April 2021. In accordance with Article FINPROV.11(2) of the TCA, the formal decision to extend will be taken by the Partnership Council and this, evidently, before 28 February. The extension follows a request to that effect by the EU which needs more time to finalise its internal procedure to conclude the TCA. Under Article FINPROV.11(2), provisional application of the TCA is to cease on the day the TCA enters into force or on 28 February 2021, whichever is the earliest. However, the same provision also confers a power on the Partnership Council to amend the date of 28 February. That option has now been used after the UK government seemingly reluctantly agreed to the EU’s request. The reason why the EU requires more time is that given its comprehensiveness the TCA is concluded, on the EU side, as an association agreement pursuant to Article 217 TFEU. Such agreements, by virtue of Article 218(6)(a)(i) TFEU, require the consent of the European Parliament. The UK government of course has a fair point when it notes that this requirement of Parliamentary consent was perfectly known when the EU negotiators initially agreed to the date of 28 February. On the UK side, the government pushed the TCA through parliament without leaving MPs the time to do any serious scrutiny. In the EU, on the other hand, the Parliament is given the time to at least have a look at the TCA before taking the decision to accept or reject the agreement. Unelected bureaucrats might find the extension request a democratic nuisance and “a little disappointing” (at Q24) but then again, the EU should not lower its democratic standards for the sake of being able to establish legal relationships with its partners.

The possibility for the Partnership Council to extend the period of provisional application is itself an interesting example of the EU’s developed practice of provisional application of international agreements as foreseen in Article 25 VCLT. This practice is recently receiving greater attention from academics and practitioners (just in 2020, see the contributions by Chamon in EJIL, Driessen in CMLRev. and Heliskoski). Under EU law, provisional application is typically associated with the practice of (facultative) mixed agreements. However, the TCA is a facultative EU-only agreement and is still being provisionally applied. In itself, this is not too exceptional since most of the international agreements which the EU provisionally applies are EU-only agreements.

The reasons for provisionally applying EU-only agreements are different however from the typical reason why mixed agreements are provisionally applied and are in line with the typical reasons why provisional application is resorted to in international law. In the case of the TCA, there evidently was the urgency and the need to ensure continuity (avoiding a gap) between the end of the transition period under the Withdrawal Agreement and the application of the TCA. However, the TCA remains a remarkable case given its unusual elaborate mechanism for extending provisional application. Typically, the international agreements negotiated by the EU do not contain a fixed end date for provisional application (other than the date on which the agreement enters into force) and therefore do not contain an extension clause either. The solution opted for in the TCA then seems a compromise between the UK (which was not in favour of provisional application) and the EU (which thought it necessary to complete its internal procedures). The UK is right in noting that provisional application implies greater uncertainty for traders since, unless otherwise provided, such application can be unilaterally terminated without respecting a notice period (notably when one of the parties notifies the other that it does not intend to be come a party to the agreement anymore, even if this is not as such foreseen in Article FINPROV.11), whereas Article FINRPOV.8 prescribes a period of 12 months to terminate the TCA once it has entered into force. The current situation is as much the result of the UK government’s decision not to request an extension of the transition period under Article of the Withdrawal Agreement. Finally, it is also wrong to suggest, as Michael Gove did (at Q39) that by not ratifying before 28 February the EU is somehow reneging on its obligations under the Withdrawal Agreement or even the TCA itself. The provisional application of the TCA does not create an obligation to ratify the TCA. By asking for an extension of the provisional application, the EU is also in no way breaching its obligation under Article 18 VCLT not to defeat the object and purpose of the TCA. Finally, under the Withdrawal Agreement (and the Political Declaration) the EU did not commit to an obligation of result to conclude an agreement on a new partnership.

The decision whether to conclude the TCA remains a sovereign choice of the EU to make. That of course does not mean that the odds of the Parliament (or Council) rejecting the agreement have now increased. The extension simply serves to ensure that MEPs and EU citizens may reflect on the content of the agreement in all official languages of the EU. A right withheld by the UK government to its own parliament and citizens but one which the EU is right to uphold for its own Parliament and citizens.

Merijn Chamon is Assistant Professor in EU Law at Maastricht University.